WASHINGTON (Legal Newsline) — With ever-changing technologies,
companies are constantly looking for new ways to reach consumers but are also interested in protecting themselves from lawsuits.

Recently,
efaxes have become a hot button issue on whether they are covered by the
Telephone Consumer Protection Act (TCPA), which was enacted by Congress in 1991 to protect consumer privacy and public
safety from unwanted phone calls and faxes.

“If you
look at the TCPA and its legislative history, the concern at the time was tying
up phone lines, using up ink and paper, actual tangible resources,” Esteban
Morales - an associate with Mintz, Levon, Cohn, Ferris, Glovsky and Popeo - told Legal Newsline.

Then in
2005, Congress passed the Junk Fax Protection Act (JFPA) to define and codify
established business relationships and force fax senders to add an “opt-out of
future faxes” option for the receivers.

In
2009, Westfax, a company that transmits faxes on behalf of other companies, filed a petition to the Federal Communications Commission (FCC) to get
clarification on TCPA and JFPA. Specifically, the company was wondering whether an
efax counted as a fax, email or both.

In the
decision, the FCC found that efaxes are covered under TCPA stating, “The TCPA
and the commission’s rules make it unlawful for any person to use any telephone
fax machine, computer, or other device to send an unsolicited advertisement to
a telephone fax machine unless there is an EBR between the sender and
recipient, the sender has obtained the recipient’s fax number through an
acceptable method, and the sender provides certain notices on the fax
transmission.”

The
exception to the ruling is when efaxes are sent as an attachment in an email.

In
2015, Joseph T. Ryerson & Son filed a petition to the FCC, claiming efaxes
that are sent and received digitally are more closely related to emails, not
faxes, and shouldn’t be covered by the TCPA. The petition also claims the ruling
violates the First Amendment.

“The
TCPA is a content-based restriction on speech.
Regulations that distinguish between speech by its ‘subject matter’ or ‘by
its function or purpose’ are content-based ‘and, therefore, are subject to
strict scrutiny,’” the petition stated.

Morales
agreed that efaxes should not be covered under TCPA - “It’s difficult to explain
why someone who has received an efax has suffered any harm and wouldn’t be harmed
by receiving any other email.”

The
argument might be that companies may be losing productivity and money because
employees are scrubbing through additional emails.

Morales
said that hardly any time is lost going through emails and it’s
difficult to track the time that is spent. “Time isn’t a tangible resource,”
Morales said.

The
Ryerson petition is still pending, leaving some companies in limbo.

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